- The Washington Times - Monday, August 18, 2003

HARRISONBURG, Va. (AP) — Prosecutors plan to pursue sodomy charges against 26 men despite a U.S. Supreme Court ruling that legal experts say invalidates Virginia’s antisodomy law.

The indictments issued July 21 followed a three-month investigation of public sodomy and solicitation to commit sodomy at an adult bookstore in Harrisonburg. They also came about a month after the Supreme Court struck down Texas’ antisodomy law.

Legal experts generally agree that the high court’s ruling means that laws banning sodomy in private are unconstitutional but that laws against public sodomy can be enforced.

Virginia’s “Crimes Against Nature” statute, however, does not distinguish between public and private activity, leading some civil rights groups and homosexual rights advocates to argue that the state’s law is unenforceable even against public sodomy.

Kent Willis, executive director of the American Civil Liberties Union of Virginia, told the Roanoke Times, “Our interpretation is that any charges under the sodomy law are invalid at this point.” Other misdemeanor charges were available to the police, he said, including lewd and lascivious cohabitation, obscene exhibitions and indecent exposure.

Dyana Mason, executive director of Equality Virginia, a homosexual rights organization, suggested that the indictments reflect the underlying discriminatory nature of the statute. “My concern [is] that this law can still be used to harass and intimidate gay men,” she told the paper.

Virginia Attorney General Jerry W. Kilgore says he believes the Supreme Court decision does not preclude prosecutions for public sodomy or solicitation to commit sodomy, spokesman Tim Murtaugh said yesterday.

Mr. Murtaugh, however, said Mr. Kilgore has not issued an official opinion on the subject.

Although many say the issue requires action by the General Assembly, at least one influential legislator disagreed.

House Majority Leader H. Morgan Griffith, Salem Republican, said he believes the law is fine as it is and that lawyers on the Virginia Crime Commission agree.

But even the prosecutor in the Harrisonburg cases says he believes everyone would be better off if the General Assembly rewrote the law to clarify what’s legal and what’s not in the wake of the Supreme Court ruling in Lawrence v. Texas.

Harrisonburg Commonwealth’s Attorney Marsha Garst said the men arrested in Harrisonburg were not targeted because they are homosexuals. The police would have cracked down on the activity just as strongly had heterosexuals been having sex in a public place such as a bookstore, she said.

But drawing the line between public and private sodomy in Virginia is complicated by the way the state’s law is written, said Sam Garrison, a Roanoke lawyer and homosexual rights activist.

Like most states, Virginia has a “savings clause” in its state code to allow for the preservation of the remainder of a law when part of it is struck down by a court ruling.

Virginia’s law barring sodomy has one section, a blanket prohibition of oral and anal sex, with no distinction between acts occurring in public or in private.

University of Virginia Law School professor Anne Coughlin said, “Here, you don’t know what to save.”

Mr. Griffith, a lawyer, says he believes the law can be used as is and that the General Assembly doesn’t have to tinker with it.

“I think we’re better off leaving the thing alone and letting the courts sort out some of it, and then us step in if there’s a problem,” he said.

But Mr. Griffith said that when the General Assembly session starts in January, as many as 20 bills to rewrite the sodomy law could be introduced.

“I think there are going to be bills all over the place,” he said. “If we could get a circuit court opinion on this before January, it would clarify whether or not we need to do anything with the code.”

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